An Evidence Code Primer for Family Law Attorneys Part Iii: Documentary Evidence
| Publication year | 2018 |
| Author | Hon. William J. Howatt, Jr. (Retired) & Stephen D. Hamilton |
Hon. William J. Howatt, Jr. (Retired) & Stephen D. Hamilton
Hon. William J. Howatt was appointed to the El Cajon Municipal Court in 1979 by Governor Edmund G. Brown, Jr. and to the San Diego Superior Court in 1987 by Governor George Deukmejian. In the Superior Court he served as Presiding Judge of the entire Court in 1996 and 1997, on the Appellate Division of the Superior Court, and culminated his career on the bench as Supervising Judge of the Family Law Division. His legal career included over ten years as a Deputy District Attorney for the County of San Diego, including felony trials, the Fraud Division and the Appellate Division. Judge Howatt frequently lectures on Evidence law and has designed a special three-evening Evidence program for family law attorneys. He retired from the Bench in December of 2006. Since retiring, he does arbitrations and mediations with JAMS in San Diego and acts as a privately compensated temporary judge.
Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.
"The eyes are more exact witnesses than the ears." - Heraclitus
Some of the most persuasive and reliable, if properly authenticated, evidence in a family law matter is documentary evidence. Whether it is a photograph of a party's injuries following a domestic violence incident, a school attendance log showing a child consistently being late for school during one party's custodial time or that bank record showing the withdrawal of money from a joint account after separation, documentary evidence almost always carries greater weight than the testimony of a party. A document will not change its testimony as a witness can unexpectedly do. For that reason, understanding how to overcome evidentiary objections to documents should be party of your basic skill set as a family law litigator. This article will address how to properly admit documentary evidence, starting with a discussion of the applicable terminology.
Documentary evidence is usually a writing or other document. However, the statutory definition is much broader than just printed documents:
"Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.1
This definition therefore covers electronically stored information, photographs, audio and video recordings.
Other statutory definitions pertaining to documentary and tangible evidence include:
- ELECTRONIC: "means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."2
- ELECTRONICALLY STORED INFORMATION: "means information that is stored in an electronic medium."3
- JUDICIAL NOTICE: Sometimes referred to as "judicial evidence". The acknowledgement by the court of a generally accepted or undisputed fact or the existence of a document. The introduction of evidence through judicial notice is strictly limited in scope by statute.4
- PAROLE EVIDENCE RULE: This rule prohibits the introduction of oral or written evidence that is outside the four corners of a written agreement that seeks to modify or explain the contents of the writing by interpreting the intent of the parties to the agreement.5
- TANGIBLE EVIDENCE: Real or physical evidence. A real or physical object that can be held or touched and by its appearance, texture, feel, weight, and/or size it can be readily identified and recognized for what it is.
- TAINTED EVIDENCE: Evidence that has been obtained by illegal or improper means and which is, for that reason, subject to exclusion as inadmissible. For example, evidence in a family law action that has been obtained through eavesdropping.6
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You cannot introduce evidence without authenticating it.7 You must prove to your judicial officer the evidence is what it purports to be. In other words, is the writing genuine? To authenticate a writing, you need to either introduce "evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is..."8 or establish "such facts by any other means provided by law.9 Further, before a writing or secondary evidence of a writing is received into evidence, you first need to authenticate the writing.10
Authentication is not necessarily exhaustive in presentation, nor need it be elaborate. Simply present the court with a prima facie case the item is what it claims to be. The court is only required to find that prima facie evidence exists to support the proposition that the evidence is genuine, and the trier of fact determines the "weight" or "probative value" of the evidence once admitted.
The foundational fact or preliminary fact determination is made under Evidence Code section 403 in a hearing conducted under Evidence Code section 402. At that hearing, the court is responsible only for finding sufficient evidence to support prima facie evidence of authenticity.
For example, what if Wife (Lizzie) has been verbally and physically abusive to your client, her husband (Andrew)? Following one incident, she wrote an incriminating note apologizing for the attack and the injuries to Andrew. Under this hypothetical, the document is relevant as it would establish Andrew has been the victim of domestic abuse during the marriage. Such evidence must be considered by the Court under Family Code section 4320(i) as a factor to consider in addressing spousal support at trial. So how do you get the note into evidence? Professor Imwinkelried has published California Evidentiary Foundations with full suggested foundational questions and is an excellent reference should you need it.
Of note is the fact you did not need a handwriting expert to successfully introduce the exhibit. That is because a lay witness is allowed to identify the handwriting of another if the witness has personal knowledge of the author's handwriting.11
Electronic evidence can be more complicated to authenticate, but that does not lessen your obligation to make sure such evidence is introduced given the relatively low threshold of establishing a prima facia case of the authenticity of the ESI: "Ironically, however, counsel often fail to meet even this minimal showing of authentication when attempting to introduce ESI, which underscores the need to pay careful attention to this requirement. Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation."12
The California Evidence Code includes other specific provisions and guidance for authenticating writings without relying on the person who prepared or signed the document:
Section 1413: A witness to the execution of a writing can authenticate.
Section 1414: A party admits to the authenticity of the writing.
Section 1415: Evidence of the genuineness of the handwriting,
Section 1416: Testimony from a non-expert who is familiar with the handwriting of the purported author.
Section 1417: Handwriting comparison by the trier of fact.
Section 1418: Handwriting expert identification.
Section 1420: Authentication by evidence of a response.
Section 1421: Authentication by content.
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Authentication as a response occurs when a letter is received, for example, in response to a letter or other communication sent by the recipient of the response. Content can also be used to authenticate where the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing. Authentication by admission can occur through a formal "Request for Admission" discovery request, or through a party's admission of authenticity in a declaration or testimony. For example, when a witness testifies they wrote a text message but really did not mean what they wrote. The probative value of the explanation is for the trier of fact to determine.
Original evidence "means the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. An 'original' of a photograph includes the negative or any print therefrom. If data is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'"13 In contrast, a duplicate is "a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original."14 However, note that these definitions were adopted in 1977, and based on changes in technology in the intervening 40 years, you should be able to argue for liberal interpretation of these statutory definitions. Section 2 states that the provisions of the Evidence Code are to be "liberally construed with a view to effecting its objects and promoting justice."
What happens if you have a writing that you contend is genuine and authentic, but appears to have been altered after execution? Clients regularly produce original, authentic documents...
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